Articles Posted inReasonable Accommodations

Although this sounds counter-intuitive, equal treatment of all employees can be discriminatory and in violation of disability and other laws. The seminal case on this issues is US Airways, Inc. v Barnett (2002), decided by the US Supreme Court. In that case, the high court considered whether leave and other policies equally applied to all employees, regardless of their disabilities and limitations can still be discriminatory. The answer is yes. The Court said that an employer who treats all employees equally might still be in violation of the law, since preferences sometimes prove necessary to achieve the basic equal opportunity goal envisioned by law. The law requires preferences in the form of reasonable accommodations that are needed for those with disabilities to obtain the same workplace opportunities that those without disabilities automatically enjoy.

The Court further noted that by definition any special “accommodation” requires the employer to treat an employee with a disability differently, i.e. preferentially. Otherwise, neutral office assignment rules would automatically prevent the accommodation of an employee whose disability-imposed limitations require him to work on the ground floor. Neutral “break-from-work” rules would automatically prevent the accommodation of an individual who needs additional breaks from work, perhaps to permit medical visits. Likewise, neutral furniture budget rules would automatically prevent the accommodation of an individual who needs a different kind of chair or desk.

Asthma and sensitivity to tobacco smoke and other pollutants are conditions that have been recognized by courts as a protected disability at workplace, entitling the workers suffering from those conditions to a reasonable accommodation.
In County of Fresno v. Fair Employment & Housing Commission (1991), the employer (the county) argued that hypersensitivity to smoke is either a non-handicapping respiratory disorder, not covered by the California disability laws, or an “environmental limitation” rather than a physical limitation. The court has rejected both arguments, finding that because of the respiratory disorder, exposure to tobacco smoke produced by other employees substantially limited the Plaintiff’s ability to breathe, rendering the Plaintiff “handicapped” and covered by ADA (Americans with Disabilities Act) / FEHA (Fair Employment and Housing Act). In that case, the employer actually attempted to reasonably accommodate the plaintiff, and the following actions were taken: smokers used desktop air filtration machines, employees kept windows open, management separated Plaintiff’s desk from the desks of smokers, Plaintiff was offered an alternative position in another department, where smoking was not permitted. Because all of the above accommodations proved to be either futile or ineffective, the court still found that the employer failed to reasonably accommodate Plaintiff.

One of the hallmarks and great advantages of California disability laws, which encompasses employers’ obligation to engage in interactive process to find reasonable accommodations to qualifying employees with a disability or a medical condition, is its flexibility. Generally, the employer must consider various solutions to accommodating an employee and be reasonable creative and considering different types of things that the company can do to help the disabled worker remain in the workforce.
One of such accommodations, which can be particularly relevant in cases where an employee has a psychological/mental disability is working from home. In Humphrey v. Memorial Hospitals Association, the Ninth Circuit specifically noted that allowing an employee who suffered from OCD (obsessive compulsive disorder) to work from home can be one type of reasonable accommodation that should be considered if it may be effective and if performing that employee’s job duties from home would not impose undue hardship on the employer. In that case, the other fact that was helpful to plaintiff is demonstrating that some of her co-workers worked from home, while she was denied that accommodation, and that company had a policy of allowing employee to work from home.

Even though the employer argued that there was no guarantee that working from home would be an effective accommodation to claimant, the court was not persuaded, as one doctor’s testimony that working from home could have been effective was sufficient to trigger liability against the employer for failure to provide such an accommodation.

Under both FEHA and ADA, employers must make reasonable accommodations to the disability of an individual unless the employer can demonstrate that doing so would impose “undue hardship.” Cal. Code. Regs. tit. 2 section 7293.9. In other words, there are limits on the restructuring that an employer needs to do. Accommodations need only be “reasonable.” An employer need not undertake an accommodation that would created an “undue hardship.”

“Undue hardship” means an action requiring significant difficulty or expense, when considered in light of the following factors: (1) the nature and cost of the accommodation needed; (2) the overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility; (3) the overall financial resources of the covered entity with respect to the number of employees, and the number, type, and location of its facilities; (4) the type of operations, including the composition, structure, and functions of the workforce of the entity; and (5) the geographic separateness, administrative, or fiscal relationship of the facility or facilities.

The burden on proving that providing reasonable accommodations would constitute undue hardship is on the employer, as the law makes clear that the term “reasonable accommodation” is to be interpreted flexibly to that employer must not only remove obstacles that are in the way of the progress of the disabled, but that they actively restructure their way of doing business in order to accommodate the needs of their disabled employees. Prilliman v. United Airlines, Inc. (1997)

Last week, I participated in the interactive process discussion with my client and his employer – the state agency in Sacramento, to find reasonable accommodations to his disability (impairment of short-term memory and learning disability). The employer should an admirable willingness to comply with the disability laws under FEHA (Fair Employment and Housing Act) and engaged in the interactive process as required by law.

During our discussion in an attempt to see what reasonable accommodations, if any, may be available to my client, the employment lawyer for the State kept reiterating that it’s the employee’s burden to show that such reasonable accommodations are available. I, on the other hand, had to point out to the counsel for the State that he was incorrect. I reminded him that in one of the leading cases on the issue, Barnett v. U.S. Air, Inc. (9th Cir. 2000), the employer also tried to place the entire burden of showing the availability of reasonable accommodations on the employee, but the court disagreed, stating that to put the entire burden for finding a reasonable accommodation on the disabled employee and relief the employer from the duty to identify possible accommodations conflicts with the purpose of the law and thus doesn’t make sense.

The employer must participate in a search for effective accommodations to disabilities of their employees because these employees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations that the employer might have. Placing the entire burden on the employee to identify a reasonable accommodation risk shutting out many workers simply because they do not have the superior knowledge of the workplace that the employer has.

Once an employer becomes aware of the need for accommodation for a qualifying disabled employee, that employer has a mandatory obligation under the law to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. An appropriate reasonable accommodation must be effective in enabling the employee to perform the duties of the position.

The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees, and neither side can delay or obstruct the process. A party or an employer that obstructs or delays an interactive process may be found liable for acting in bad faith.

The duty to accommodate disability is a continuing duty that is not exhausted by one effort. The EEOC Enforcement Guidance notes that an employer must consider each request for reasonable accommodation, and that if a reasonable accommodation turns out to be ineffective and the employee with disability remains unable to perform an essential function, the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship. This rule fosters the framework of cooperative problem solving contemplated by the law, by encouraging employers to seek to find accommodations that really work, while preventing employees from requesting the most drastic and burdensome accommodations possible.

It is not uncommon for an employer to terminate an employee because of his or her disability in violation of FEHA and other anti-discrimination laws, and attempt to mask disability discrimination and failure to provide reasonable accommodations by telling an employee while terminating him that he can apply for other jobs in the company that might suit him. This move seems to be particularly obvious when the employer tells the employee that he should apply for any job externally, like any other outside applicant, not having any priority in hiring or consideration for any position.

The California courts are unimpressed with this move to go around the law protecting disabled workers. The Ninth Circuit specifically held in Barnett v. U.S. Air. Inc. (9th Cir. 2000) 228 F.3d 1105 that an offer to bid on other jobs, “a right the employee already had,” did not represent reasonable accommodations as required by law. Reassignment involves more than a mere opportunity for disabled employees to compete. Quoting EEOC guidelines, the court concluded that reassignment within the meaning of reasonable accommodations means that the employee gets the vacant position if he/she is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congresses intended it when it enacted disability anti-discrimination laws.

The second district made an important distinction between disability discrimination and failure to provide reasonable accommodations in Jensen v. Wells Fargo Bank 85 Cal.App.4th 245 (2000). In that decision, the court noted that the elements of a failure to accommodate claim are similar to the elements of disability discrimination under under California Gov. Code section 12940(a), but there are several important differences. For the purposes of the failure to accommodate claim, the employee does not need to show that he is able to perform the essential functions of his present job (like it is necessary to show in order to prove discrimination), but only that he or she is able to perform the duties of the job which he or she is seeking to be reassigned to.

Even more importantly, in claims for failure to accommodate, it does not matter whether the employee was terminated, suspended or otherwise disciplined in retaliation for his disability (like it is required in discrimination claims). The employer’s mere failure to reasonable accommodate a disabled individual is a violation of the statute in and of itself. Cal.Gov. Code section 12940(k).

In other words, prevailing on a disability discrimination claim is harder than proving failure to accommodate, because it requires showing that the employee suffered an adverse employment action, and that there is a causal link between the disability/medical condition and the adverse employment action, while no adverse employment action needs to be shown in order to prevail on a separate claim for failure to provide reasonable accommodations to a disabled worker.

The California Fair Employment and Housing Act (FEHA) provides a non-exhaustive list of possible accommodations that an employer may consider to accommodate a qualified disability or medical condition of an employee. These typical reasonable accommodations include, but are not limited to:

Under California law (Fair Employment and Housing Act or “FEHA”) an employer has an affirmative duty to engage in a timely, good-faith interactive process with an employee who is disabled or who the employer perceives to be disabled.

The interactive process is a discussion between an employer and employee that contemplates that the employee and employer will communicate directly with each other to exchange information about job skills and job openings to find a reasonable accommodations to the employee’s disability to the extent possible, without constituting undue hardship on the employer.

Communicating with the employee’s representatives, rather than with the employee personally, may suffice in some circumstances. In Hanson v. Lucky Stores, Inc., the court noted that it was appropriate for the employer to consult with employee’s doctors and vocational rehabilitation specialists in order to identify available and suitable positions and offer those to the disabled employee.